Sulzberger & Sons Co. of Okla. v. Strickland
| Decision Date | 06 June 1916 |
| Docket Number | Case Number: 7813 |
| Citation | 60 Okla. 158,159 P. 833,1916 OK 605 |
| Parties | SULZBERGER & SONS CO. OF OKLAHOMA v. STRICKLAND. |
| Court | Oklahoma Supreme Court |
¶0 1.Pleading--Reply--Right to File.
On the day of the trial the court, over the objection and exception of the defendant, permitted the plaintiff to file a reply to the answer of defendant. In the light of section 6005, Rev. Laws of Oklahoma 1910, this action complained of by the defendant on the part of the trial court did not constitute any substantial violation of any statutory right of the defendant. This section was in full force at the time the trial court permitted plaintiff to file his reply and make the amendment complained of.
2. Negligence--"Actionable Negligence"-- What Constitutes.
To constitute "actionable negligence" upon the part of defendant where the wrong is not willful and intentional, three essential elements are necessary: (1) There must be some duty owing by it to the plaintiff; and (2) a failure upon its part to perform that duty; and (3) injury proximately resulting to the plaintiff from such failure upon its part. C., R. I. & P. v. Duran, 38 Okla. 719, 134 P. 876.
3. Master and Servant--Injuries to Servant--Duty of Master.
The master is bound to exercise reasonable care and diligence to provide a reasonably safe place in which the employee or servant is to work, and also reasonably safe machinery, tools, and appliances with which to work, and to supply the servant with reasonably safe materials upon which to perform the work required of him.
4.Same--Care--Question for Jury.
In cases like the one at bar, which turn on the question whether the party exercised ordinary care or was guilty of negligence, after the usual appropriate definitions of these particular terms by the court, it is the province of the jury to say, from a consideration of the evidence, whether in the particular case ordinary care was exercised, or whether there was negligence. In other words, what is ordinary care or what is negligence in the particular case is a question of fact for the jury, and not of law for the court.
5. Same--Appliances--Statutes.
"3746, Machinery to have Safety Devices. The owner or person in charge of a factory or any institution where machinery is used shall provide belt shifters or other mechanical contrivances for the purpose of throwing belts on or off pulleys, whenever practicable. All machines shall be provided with loose pulleys and all vats, pans, planers, cogs, gearing, belting, shafting, setscrews and machinery of every description shall be properly guarded. * * *
6. Same--Actions--Instructions.
The trial judge in this case charged the jury under the Factory Act, and also went further and charged the jury as to the law touching the duty of the defendant to furnish the plaintiff with a reasonably safe place in which to work and reasonably safe machinery with which to work, and also charged the jury concerning the assumption of risk. Had the court simply charged the jury under the Factory Act, then it would not have been necessary to have charged them as to the common-law liability as to a reasonably safe place in which to work, and reasonably safe machinery with which to work and the defense thereto of assumption of risk. But, having done so by proper instructions, we see no reversible error therein.
7.Same-- Statutes--Jury Questions--"Negligence Per Se."
This Factory Act is a mandatory statute. The things expressly enumerated therein, together with machinery of every description, shall be properly guarded. This declares the fixed and settled public policy of the state touching these matters and things, and a violation of this act is made a crime and punishable as such. The sovereign, in order to afford greater and better protection to the lives and limbs of the subject who earns a livelihood by working with and around machinery, and in order to lessen the chances of accidents, has expressed her will in the solemn mandates of this mandatory and penal statute, which must be obeyed, and a failure to obey it becomes and is "negligence per se;" and those who disobey it are not entitled to the defense of assumption of risk, but may interpose the defense of contributory negligence. These matters were questions of fact for the jury. They were submitted to the jury. The jury by their verdict have found under the law and the evidence that the defendant was negligent as complained of. This court will not disturb their verdict.
8. Same--Statute--Construction--Ejusdem Generis.
The doctrine of ejusdem generis was applied in an Ontario case so as to limit materially the effect of the earlier statute. In Indiana the Supreme Court has been inconsistent in its construction of the statute providing: "All vats, pans, saws, planers, cogs, gearing, belting, shafting, setscrews and machinery of every description." The rule finally adopted is that the phrase, "machinery of every description," does not modify in any way the specific appliances mentioned, but embraces all other kinds of machinery, which would be too numerous for the Legislature to mention, although an earlier decision of the Supreme Court, to the effect that the general terms simply referred to other appliances of the same general description as those indicated by the specific terms, under the doctrine of ejusdem generis, was not in terms overruled. The doctrine of the Washington court is the same as that which appears to prevail in Indiana. And a somewhat similar view is taken of the statute in New South Wales.
9. Same.
The doctrine of "ejusdem generis" is that where a general word follows particular and specific words of the same nature as itself, it takes its meaning from them, and is presumed to be restricted to the same genus as those words. The language here does not admit of the application of the ejusdem generis doctrine. The phrase "and machinery of every description" cannot be limited by the prior enumeration, for the reason that such enumeration is not an enumeration of machines at all--the genus of those words is not of the same nature as of "machinery of every description." A vat is not a machine; neither is a pan, nor a saw. Cogs, gearing, belting, shafting, and set-screws are not machines, but may each or all enter into and be a part of various machines. Since no enumeration of machinery precedes the general terms, there is nothing to limit those terms, and they are broad enough to cover any machine that is dangerous to life or limb, and which, without impairing its utility, can be guarded.
10. Trial--Instructions-- Contributory Negligence.
In an action for damages based on negligence, wherein contributory negligence on the part of the plaintiff is pleaded as a defense, and there is evidence tending to sustain such defense, an instruction which ignores the defense of contributory negligence in authorizing the jury to find the issues in favor of the plaintiff, according as the jury may determine certain facts in support of plaintiff's theory of his case, will not be held erroneous when the court immediately follows said instruction with another, beginning with the words, "But, upon the other hand," etc., and correctly states the law of assumption of risk and of contributory negligence to the jury under the defendant's theory of the case.
11. Master and Servant--Injuries to Servant--Instruction.
Instructions examined, and held, on the whole, to substantially state the law applicable to the cause.
Error from District Court, Oklahoma County; John W. Hayson, Judge.
Action by Daniel W. Strickland against the Sulzberger & Sons Company of Oklahoma, a corporation. Judgment for plaintiff, and defendant brings error. Affirmed.
Keaton, Wells & Johnston, for plaintiff in error.
John R. Guyer, Robert A. Rogers, and T. E. Robertson, for defendant in error.
¶1 For convenience the parties will be designated throughout this opinion as in the court below, the defendant in error as plaintiff, and the plaintiff in error as defendant.
¶2 Suit was filed in the district court of Oklahoma county by Daniel W. Strickland against Sulzberger & Sons Company, of Oklahoma, on the 14th day of December, 1914. The plaintiff in his petition alleges that on the 4th day of November, 1914, he was employed by the defendant company, which is engaged in the business of running a packing plant in the city of Oklahoma City; that in said packing plant there was a machine, commonly known as the "gut reel," used for the purpose of winding the intestines of cattle during the process of cleaning and preparing such intestines for use as casings for products of said packing plant, which said gut reel was composed of a certain large wheel made up of rim and spokes, which said spokes said defendant negligently maintained in an unguarded and unprotected condition, in that no protection was provided by defendant to guard against injury to plaintiff while passing near such gut reel in the performance of his duty; that a part of said machine consisted of a clutch, to which was connected a lever, the function of which was to throw the machine out of gear and stop said gut reel when in motion upon the sliding and shifting of said lever by the person desiring to stop said reel; that the defendant negligently maintained the said machine in a defective condition, so that the said lever would not work and perform its function of throwing out the said clutch and thus stopping the said machine; that said defendant knew of such unguarded and unprotected and dangerous condition, and that said condition had existed for a sufficient length of time that the defendant, in due exercise of ordinary care, should...
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